State v. Lavery, 68238

• Decision Date: 13 August 1993
• Docket Number: No. 68238,68238
• Citation: 19 Kan.App.2d 673,877 P.2d 443
• Parties: STATE of Kansas, Appellee, v. Donald M. LAVERY, Appellant.
• Court: Kansas Court of Appeals

Page 443

877 P.2d 443

19 Kan.App.2d 673

STATE of Kansas, Appellee, v. Donald M. LAVERY, Appellant.

No. 68238.

Court of Appeals of Kansas.

Aug. 13, 1993.

Motion for Publication Granted Dec. 29, 1993.

Syllabus by the Court

1. The grant or denial of a psychiatric examination of the victim in a sex crime is within the discretion of the trial court.

2. The rape shield statute, K.S.A.1992 Supp. 21-3525, allows evidence of an alleged rape victim's prior sexual conduct if, after an in camera hearing, the court finds the evidence relevant to any fact at issue, such as the identity of the rapist, the consent of the victim, and whether or not the defendant actually had intercourse with the victim. Decisions regarding the relevancy of evidence rest within the sound discretion of the trial court, which should not be set aside absent a showing of abuse of discretion.

3. The similarities between an alleged sexual offense and the prior sexual experience of the child victim will affect the decision to admit evidence of the prior sexual experience when offered for the purpose of establishing an alternative source for the child's ability to describe the sexual activity. The trial court must balance the probative value of the evidence against its prejudicial effect.

4. If evidence of prior sexual activity is relevant and of probative value to the trier of fact, it should be admitted, notwithstanding the public policy of the rape shield statute, K.S.A.1992 Supp. 21-3525.

5. In cases of crimes involving sexual acts between an adult and a child, evidence of prior similar acts between the same parties is admissible independent of K.S.A. 60-455 where the evidence is not offered for the purpose of proving distinct offenses, but rather to establish the relationship of the parties, the existence of a continuing course of conduct between the parties, or to corroborate the testimony of the complaining witness as to the act charged.

6. Evidence of one prior incident involving sexual acts between an adult defendant and the child victim is neither sufficient to establish a relationship nor to prove a continuing course of conduct between them.

Joseph L. Dioszeghy, Overland Park, for appellant.

W. Scott Toth, Asst. Dist. Atty., Paul J. Morrison, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before BRISCOE, C.J., and BRAZIL and GREEN, JJ.

BRAZIL, Judge:

Donald M. Lavery appeals the jury's guilty verdict on the charge of aggravated criminal sodomy pursuant to K.S.A. 21-3506. Lavery contends the district court erred in denying his motion for an order compelling a psychiatric examination of the complaining witness and his motion to admit evidence of previous sexual conduct of the complaining witness and by admitting purported evidence of prior sexual conduct between the complaining witness and Lavery. We reverse and remand for new trial.

K.R., a nine-year-old girl at the time, lived in the same neighborhood as Lavery. Prior to the summer of 1991, K.R. had a good relationship with Lavery's family. K.R. and Lavery's daughter, A.L., were close and played together on a regular basis. On a Memorial Day trip to the Lake of the Ozarks, Lavery came into K.R. and A.L.'s room and laid down between the girls. Lavery stuck his hand under the covers, pulled down K.R.'s panties, and touched her vagina. K.R. testified Lavery rubbed her vagina in circles for approximately two to five minutes. K.R. further testified she wanted to "scream and stuff" so Lavery would stop it, but she was too scared. Lavery told K.R. to keep the incident a secret.

After the Lake of the Ozarks incident, K.R. continued to see A.L. K.R. wanted to see A.L. and did not think Lavery would do anything like that to her anymore. However, another incident occurred between K.R. and Lavery in early July, which is the basis for this case. A.L. invited K.R. to spend the night at her house. A.L., Lavery, Lavery's wife Patty, and K.R. watched movies. During the second movie, A.L. got up and went to bed. K.R. stayed in the living room and watched the rest of the second movie with Lavery and Patty. When the movie was over, K.R. went into A.L.'s room to get her nightgown and then went into the bathroom to change because A.L.'s room did not have a door. While K.R. was in the bathroom, Patty had gone into her bedroom to watch television.

When K.R. exited the bathroom, Lavery grabbed her by the arm and told her to keep what was about to happen a secret. Lavery pulled her into the bathroom. Once inside the bathroom, Lavery lifted K.R.'s nightgown and pulled down her panties. Lavery rubbed her vagina. Then Lavery laid her on the floor and pulled down his pants and his underwear. Lavery laid down on top of K.R. and rubbed his penis on her vagina. Lavery never penetrated K.R.'s vagina. Lavery then moved up and put his penis in K.R.'s mouth. After two to five minutes, Lavery told K.R. to keep what happened a secret and not to tell anyone. K.R. then went back into A.L.'s room and tried to go to sleep. She did not try to leave because the door was locked and A.L. had told K.R. the door was hard to unlock.

Several days later while playing with A.L. and a friend, M.K., at the Laverys' house, K.R. told A.L. and M.K. what Lavery had done. M.K. talked A.L. into telling Patty what Lavery had done to K.R. After A.L. went into the house to talk with her mother, Patty came outside, started to cry, and told K.R. to go back to her house. Lavery then walked out of the house, and K.R. could tell that he was mad. K.R. and M.K. started back to K.R.'s house. As they were walking, Lavery came down the street and told K.R., "[H]oney, it's just between you and me." Lavery then stated he needed to talk to K.R.

The girls ran into M.K.'s house screaming. M.K.'s mother testified that the girls said a man had been chasing them and that he had touched K.R. in the wrong places. Both girls were frantic, screaming, and crying. M.K.'s mother went outside and met Lavery running in the driveway. M.K. and K.R. had come outside and stood next to her. Lavery said, "Come on, [K.R.], honey. Come with me. We don't need to get anyone else involved." At this point, K.R. was acting scared to death. M.K.'s mother asked Lavery if he had touched K.R. in the way K.R. said he had. Lavery replied, "I was only playing. I didn't mean to hurt anyone." M.K.'s mother told Lavery to leave and that she was going to call the police. M.K.'s mother did not have a phone, so she took the girls to K.R.'s house to call the police. Lavery showed up at K.R.'s door and was hollering for K.R. to open the door. He eventually left when no one answered.

1. Motion to compel psychiatric examination of K.R.

Lavery argues the court erred by denying his motion to compel K.R. to undergo a psychiatric examination. Lavery recognizes that State v. Gregg, 226 Kan. 481, 602 P.2d 85 (1979), is the benchmark case by which this court must review the actions of the trial court. However, he contends that, by disallowing an independent psychiatric examination of K.R., the trial court formed a conclusion of law. Consequently, Lavery argues that this court's review is unlimited. Lavery's framing of the standard of review is erroneous.

In Gregg, the trial court denied the defendant's motion for psychiatric examination of the complaining witness in a sex crime case. 226 Kan. at 487, 602 P.2d 85. The court in Gregg stated: "The question then becomes whether the trial court abused its discretion in the denial of the motion." 226 Kan. at 489, 602 P.2d 85. Also, it was stated in State v. Blackmore, 15 Kan.App.2d 539, 541, 811 P.2d 54, aff'd in part, rev'd in part 249 Kan. 668, 822 P.2d 49 (1991), that "[t]he granting or denial of a psychiatric examination of the complaining witness in a sex crime is within the discretion of the trial court." It is well settled that the standard of review when a trial court denies a motion to compel a psychiatric exam in a sex crime case is abuse of discretion.

"Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion." State v. Wagner, 248 Kan. 240, 242, 807 P.2d 139 (1991).

Lavery's motion contended that K.R. had been inappropriately exposed to sex and that she was using that knowledge to falsely accuse him. He presented evidence that K.R. was unsupervised most of the summer, used foul language, was possibly sexually molested by Ronnie Forth, another individual in the neighborhood, and had told a false story about killers in the school basement to two neighborhood girls. The court also noted there was an episode of K.R. "playing doctor" with other neighborhood children.

In making its decision, the court reviewed all the testimony presented and found there was no evidence presented which would tend to indicate that K.R. was using any knowledge of sexual activity she may have gained through sexual conduct with Forth to fabricate an allegation against Lavery. The court stated the lack of supervision and use of vulgar language did not indicate any kind of mental aberration, flight of fancy, or a lack of truth or veracity. The court concluded that, taken individually or viewed as a whole, the evidence presented did not reach the "compelling reason" standard set out in Gregg. See 226 Kan. at 489, 602 P.2d 85.

In Gregg, the question of whether a trial court could order a psychiatric examination of the complaining witness was one of first impression. 226 Kan. at 485, 602 P.2d 85. The court discussed the various ways other jurisdictions have determined the issue and then adopted the "middle ground" approach. 226 Kan. at 489, 602 P.2d 85. The court held that "a trial judge has the discretion to order a...